Trump’s Plan to Buy TikTok: A(nother) Constitutional Crisis in the Making?

For roughly fourteen hours between January 18 and January 19, the app TikTok went dark for its more than 170 million users in the United States. This blackout was a manifestation of a 2024 law passed by Congress requiring divestment of Chinese ownership in TikTok as a matter of national security concerns—namely, fears that the Chinese government could use the app to surveille and propagandize American TikTok users. However, less than twenty-four hours after the perceived ban, users could once again reopen their app, this time to the message: “Thanks for your patience and support. As a result of President Trump's efforts, TikTok is back in the U.S.!”

The bipartisan bill, signed by President Biden in April 2024, classifies TikTok as the tool of a foreign adversary and formally bans any entity in the U.S. from distributing, maintaining, or updating such applications unless the app undergoes a “qualified divestiture.” A divestiture under the law is “qualified” if the sitting U.S. president can demonstrate that ByteDance—the Chinese company that owns TikTok—no longer controls TikTok in a manner that “precludes the establishment or maintenance of any operational relationship between the United States operations of the [application] and any formerly affiliated entities that are controlled by a foreign adversary, including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing.” In April of 2024, the law officially set in motion a 270 day countdown for ByteDance to divest from TikTok, with the possibility of one 90-day extension if the president could demonstrate tangible progress toward qualified divestiture. 

Before taking office for the second time in 2025, President-elect Donald Trump told NBC he would likely work toward granting TikTok a 90-day extension from a potential ban. He also asked the Supreme Court to declare the law unconstitutional based on TikTok’s claim that the law violates users’ First Amendment right to free speech. 

This announcement marks a dramatic split from the actions of the former Trump administration, which initially set into motion federal action against ByteDance in August 2020 when President Trump himself issued two Executive Orders ordering ByteDance to divest from TikTok, citing national security concerns. In response, ByteDance filed a lawsuit challenging the order. The case was paused in February 2021 when the Biden administration began to work on a national security agreement with ByteDance. However, after two years of negotiations, the government found TikTok’s proposal insufficient, and Congress quietly began working on the Protecting Americans from Foreign Adversary Controlled Applications Act that finally passed in 2024. 

While the law does provide a one-time 90-day extension, Trump could only order the extension if there had been “significant progress” toward “executing a qualified divestiture” with “relevant legal agreements to enable” its execution before the January 19 deadline. None of these conditions have been met so far. Trump posted on Truth Social in January after taking office, “GREAT INTEREST IN TIKTOK! Would be wonderful for China, and all concerned,” and companies like Oracle, Amazon, and Microsoft have been floated as potential buyers. However, ByteDance has failed to demonstrate its intentions to divest from the platform. 

Instead, to “save” TikTok, Trump issued a 75-day suspension of the enforcement of Congress’s law. The constitutionality of President Trump’s decision to delay the enforcement of the TikTok ban remains in question, especially given that the Supreme Court unanimously upheld the federal law requiring TikTok’s Chinese owners to divest or shut down the app on January 17, ruling that Congress’s national security concerns about ByteDance outweighed users’ First Amendment claims. 

As with the reception to former President Obama’s Dreamers and marijuana policies and former President Biden’s cancellation of student loans and failure to enforce immigration laws at the southern border, some legal experts consider this type of suspension of laws unconstitutional, because it violates the president’s constitutional duty to “take Care that the Laws be faithfully executed.” Such critics contend that the president cannot unilaterally decide which laws to enforce, likening this to the unchecked power of pre-1689 English monarchs that effectively gives the president an unreviewable veto over federal law. 

However, others cite the language of Supreme Court precedents that might justify a more discretionary use of executive power, such as when the Court reaffirmed in 2023 in U.S. v. Texas that the president can unilaterally decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” Indeed, the extent of the president’s power to suspend laws passed by Congress remains unsettled and scholars on both sides of the aisle agree that such power should raise alarm bells given recent presidents’ tendency to test constitutional limits with executive action. 

When delaying penalties of tech companies hosting TikTok on their app stores, such as Apple and Google, Trump also proposed a “joint venture” in which the U.S. would hold a 50 percent stake in TikTok, though at the time it was unclear whether he was referring to the U.S. government or private investors owning said share. 

That uncertainty was clarified, however, at the beginning of February, when President Trump ordered the creation of a sovereign wealth fund and suggested that it could be used to acquire TikTok. A sovereign wealth fund is a state-run investment fund, typically financed through budget surpluses or revenues from state commodities like oil. While Trump proposed using funds raised through tariffs and other revenue streams, this likely will not happen within the 75-day window suspension of the law demanding TikTok’s divestiture for a multitude of reasons. 

Firstly, sovereign wealth funds take time to set up. Trump’s executive order calls for the Treasury secretary, Scott Bessent, and Commerce secretary, Howard Lutnick, to develop a plan in the next 90 days, at which point the current suspension of the 2024 TikTok law would have elapsed. Bessent said at a press conference that the government anticipates the fund would be established in the next twelve months. 

Furthermore, it is unclear how the United States, which has operated under a budget deficit for more than two decades, would raise the money for a working sovereign wealth fund, especially since it lacks  revenue from natural resources or budget surpluses that other countries like Saudi Arabia or Singapore use to finance their sovereign wealth funds. 

Lastly, because establishing a sovereign wealth fund would use taxpayer dollars or other government funds to make investments in the name of the federal government, it would likely require another act of Congress to go into effect. 

If President Trump seriously plans to use a sovereign wealth fund to invest in TikTok, the likelihood of doing so within a strict 75-day timeline is all but impossible. This could result in Trump choosing to indefinitely suspend a congressional law that would set another troubling precedent for executive overreach. 

Cate Gutowski is a sophomore at Brown University studying English and Political Science. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at catherine_gutowski@brown.edu.

Yani Ince is a senior concentrating in History and Political Science. She is a blog editor for the Brown Undergraduate Law Review and can be reached at ianthe_ince@brown.edu.